Saturday, July 14, 2012

First Salvo For Cha Cha

The First Salvo for Cha Cha

Joaquin G.
Bernas, S.J.

Last week Speaker Belmonte made the first salvo for cha cha
sincesix years ago. He wants it
to begin in the House of Representatives and he wants it done not through a
constitutional convention but through a constituent assembly.When he fired this salvo, hemay have been still feeling euphoric
because of the successful impeachment of the Chief Justice.I myself think that the outcome of the
impeachment was not due so much to the efforts of the House but to the support
of some senators and finally to the admissions of Corona himself.At any rate, the Speaker wants to limit
amendments to economic provisions of the Constitution.

Although he seemed to have the support of Senate President
Enrile, the reaction of the Palace was instantaneously negative. “If it ain’t
broke, don’t fix it,” said the President.The view from the Palace is that it ain’t broke.The Palace thinks that there is no
obvious need for changesin the
economic provisions because, notwithstanding the current provisions, the
economy is flourishing swimmingly.We will leave that there.

As to Speaker Belmonte’s proposal, however, history tells us that
cha cha with the support ofFidel
Ramos and later with the support of Gloria Macapagal Arroyo did not get
anywhere.How will it fare without
the support of President Aquino?When you add to this the technical problems in the current
constitutional text on charter change, how will the Speaker avoid what killed
the efforts of Pirma and Sigaw and others.While we are at it, it might be good to
review the inherent obstacles found in the Constitution itself. It should be
salutary to recall the obstacles that thwarted charter change under Ramos and
under Arroyo.

I am not saying that we should not have charter change.I myself have a number of changes in
mind. When the 1987 Constitution was promulgated, I don’t think anyone among
those involved in writing it entertained the thought that the document’s wisdom
would never be questioned.After
all, it made some significant and debatable departures from what the nation had
considered to be traditional wisdom.Thus, during the Ramos years there already was a proliferation of
amendment proposals.I recall, for
instance, that the Philippine Constitution Association told President Ramos
that it had 97 amendments.Sergio
Apostol alone had 147!There were
more, but none succeeded.

During the Arroyo years there were also vigorous efforts at
charter change.In 1995 proponents
were so confident that Speaker de Venecia could speak as charter change was all
over but the shouting. For her part, the thinking of President Arroyo was that
charter change should finally succeed by the middle of that year.The biggest obstacle they never
succeeded in hurdling, however, was the Senate.It has to be remembered that any change in the Constitution
can be achieved with the support of two-thirds of all the members of Congress
and not just of the House.

The manner of obtaining the two-thirds vote became a subject of
intense debate during the Arroyo years.During that time there were various modes of computation being bruited
about. The most liberal of these (wild, if you wish) was that proposed by
Speaker Joe de Venecia.In the
Speaker’s theory even if only one senator should attend a session a session of
a constituent assembly, there could already be a valid proposal of amended
provided that the total number of votes approving the proposal reached
three-fourths of all the members House and Senate put together.It was a cry of desperation.

Another mode possible was that the three-fourths vote would be
based on the total membership of Congress put together.

A third mode of computation is the strict mode. This is what I
personally hold, namely, that the vote required is three-fourths of all the
members of the Senate and three-fourths of all the members of the House taken
separately.

The computation problems which arose during the earlier attempts
at amending the Constitution have never been resolved.The proposal of Speaker Belmonte to
give the task of amendment to a constituent assembly will have to deal with
this problem before the process can get anywhere.

Why do we have this problem?The problem is a necessary product of the way the
constitutional provision on amendment is worded.It says:“Any amendment to, or revision of, this
Constitution may be proposed by (1) The Congress, upon a vote of three-fourths
of all its Members; or(2) A
constitutional convention.” The provision is a copy of the text of the 1973
Constitution which was meant for a unicameral National Assembly.But now the same provision is meant to be used for a bicameral
Congress.How is the bicameral
Congress to act?In joint session
or in separate sessions?If in
separate sessions, the two Houses would normally vote separately.If in joint session, how will they vote:jointly or separately?And if voting separately, how will the
two-thirds be computed?Two-thirds
of all the members of each House computed separately or two-thirds of the sum
total of all members?

I suggest that before Congress can attempt to touch the
substantive provisions of the Constitution, it should first find a way of
settling how Congress will proceed in the light of the vague amendatory
provision of the Constitution.The
oppoents of charter change are probably saying:Let’s see you do it!